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THIS MONTH'S SUBMISSION:

I have a paralegal friend who works in a small firm (2 attorneys, 1 legal assistant/secretary, 1 paralegal), and has a question about an ethical matter.  My friend's managing attorney bills all the time to clients at the same rate, no matter if it's paralegal time, legal assistant time, or attorney time. This attorney was chastised by a judge for this practice, but continues to do it for all clients who are not in that particular judge's court. My friend found another judge's administrative order forbidding this practice in the jurisdiction and brought it to the attorney's attention, but the practice continues to bill this way. My friend wonders if billing a client the same rate for paralegal time as attorney time is ethical. If it's not ethical, is there anything my friend can do?

There are numerous cases out there regarding attorney's fees and what can or cannot be billed. However, there are no cases that say what the billable rates can or cannot be. There are no rules or guidelines that specify how much an attorney can charge for a paralegal's fees. The attorney can bill the paralegal at whatever he chooses, as long as said billing rates were disclosed up front and the client agreed to said rates by signing the retainer agreement or contract. However, when seeking reimbursement of attorney's fees from an opposing party, courts review the fees as to reasonableness. Reasonableness is based upon what other attorneys in your community charge for the same services. The judge may rule differently for different cases.

Therefore, in response to the question is it ethical and/or legal to bill a client the same rate for paralegal time as attorney time? There are no rules or regulations that say it is not legal or ethical, as long as the fees were disclosed to the client and the client agreed to the fees.

Please see the Rules of Professional Conduct of the Florida Bar, specifically Rule 4-1.5 - Fees and Costs for Legal Services:

"General overhead should be accounted for in a lawyer's fee, whether the lawyer charges hourly, flat, or contingent fees.Filing fees, transcription, and the like should be charged to the client at the actual amount paid by the lawyer. A lawyer may agree with the client to charge a reasonable amount for in-house costs or services. In-house costs include items such as copying, faxing, long distance telephone, and computerized research. In-house services include paralegal services, investigative services, accounting services, and courier services. The lawyer should sufficiently communicate with the client regarding the costs charged to the client so that the client understands the amount of costs being charged or the method for calculation of those costs. Costs appearing in sufficient detail on closing statements and approved by the parties to the transaction should meet the requirements of this rule."

Please note it doesn't say diddly squat (yes, that is a professional term) about billing paralegal fees separately.  It does, however, state that the general overhead of the attorney should be accounted for in his fees which does include paralegal services.

Bottom line, in my non-legal opinion, legal fees are truly not a paralegal's problem.  Unless, the client isn't paying them and our paycheck doesn't clear.  Or in the worst case scenario, there is something completely and totally unethical going on which I'm not going to open that can of worms as it wasn't the question presented.

In regards to the court order, this person needs to understand that one ruling on one case in regards to attorney fees doesn't apply to all cases.  Each judge is different, each circuit is different.  Just because Judge A rule one day about blanket billing doesn't mean Judge B has to follow suit.  It really depend on each specific situation and the case law that is presented to support same. A Florida judge can decide, upon the applicable motion, what fees are reasonable or not to charge.  I've seen instances where a judge has granted all attorney's fees, including any paralegal time billed, and I've seen judges mark down attorney fees and not allow paralegal time and on the other end of the spectrum, I've seen judges take away all fees from an attorney.  

(3)  The first question I would ask is "is this paralegal a registered paralegal with the Fla Bar?"  I ask that because a registered paralegal has certain ethical OBLIGATIONS whereas someone who is working as a paralegal but who has opted to not be registered should behave ethically but is not bound to by any codified regulatory body. 

The second set of questions I would ask is regarding the "other judge's administrative order".  Was the administrative order issued by a single judge regarding behavior in his/her court or by a chief judge regarding the entire district?   Did the administrative order lay out some sort of fee schedule to be adhered to (which I doubt) -- what specifically does the administrative order prohibit?

A third question would be what the one judge disallowed and why.  Was it limited to that case, was the paralegal present for the judge's ruling or have it in writing?   Perhaps it was an opinion and not a ruling.

Finally, it is important to note that Fla does not have any set fee schedule or billing guidelines for attorneys.  Each attorney or firm is free to charge whatever he/she/it chooses and clients are free to hire & fire attorneys/firms for any (or no) reason.   If the attorney works for a client who prescribes a particular rate for paralegals, the attorney is contractually obligated to follow that fee schedule.  Circumstances like this appear with insurance defense all the time  such as paralegal rates being half of what the attorney rates are, or a different rate for senior partner, junior partner, associate, and paralegal  -- or in my firm's case, one City allows the attorneys to bill at rate A and paralegals to bill at rate B (which is far less than half  :(  !!! ) with no other specification except that it be billed monthly with a description of each billed activity including date, explanation, rate and unit of time.  So, as long as the attorney and client have an understanding, there is no ethical issue.

If the paralegal feels a dilemma, they are obligated by professionalism and the employer/employee relationship with the attorney to raise the issue with the attorney -- or an attorney within the firm.  It is up to the attorney to do the right thing by educating the paralegal, discussing with the client -- or nothing.  Anytime a paralegal has heartburn about any policy or procedure, hopefully he/she has the ability to speak openly with the attorney.   I found myself in a similar situation a few years back & first I asked my attorney and that conversation lead me to do a little research on my own which is where I found that when in the throes of an ethical dilemma (of any kind), a paralegal has very little recourse and fewer obligations beyond communicating with the attorney. 

Having said all that, I realize that there are some attorneys who skate the lines of propriety far closer than some of us (as paralegals) are comfortable with but ultimately, any action on behalf of a paralegal (employee) should be taken with the best intentions for the good of the client -- under the supervision of the attorney.   That last phrase is the key.  If a situation presents itself that gives a paralegal heartburn, the obligation is to raise the issue with the attorney (not the client) thereby making the attorney aware that (a) I know, (b) I am making a well-intentioned diligent effort to do my job in the best interest of the client and (c) I trust your judgment.  If the paralegal does not like the answer provided by the attorney, Florida is an at-will employment state and the paralegal is free to be employed elsewhere.  I do not believe a paralegal owes a duty to "out" an attorney's behavior to the client (ever!) OR the Fla Bar unless the paralegal believes (and can prove) illegal activity or activity that is in breach of the Rules Regulating the Florida Bar (and is prepared to cite the Rule).     

(4)  GUIDELINE 8: A LAWYER MAY INCLUDE A CHARGE FOR THE WORK PERFORMED BY A PARALEGAL IN SETTING A CHARGE AND/OR BILLING FOR LEGAL SERVICES.

Comment to Guideline 8  

In Missouri v. Jenkins, 491 U.S. 274 (1989), the United States Supreme Court held that in setting a reasonable attorney's fee under 28 U.S.C. § 1988, a legal fee may include a charge for paralegal services at "market rates" rather than "actual cost" to the attorneys. In its opinion, the Court stated that, in setting recoverable attorney fees, it starts from "the self-evident proposition that the 'reasonable attorney's fee' provided for by statute should compensate the work of paralegals, as well as that of attorneys." Id. at 286. This statement should resolve any question concerning the propriety of setting a charge for legal services based on work performed by a paralegal. See also, Alaska Rules of Civil Procedure Rule 79; Florida Statutes Title VI, Civil Practice & Procedure, 57.104; North Carolina Guideline 8; Comment to NALA Guideline 5; Michigan Guideline 6. In addition to approving paralegal time as a compensable fee element, the Supreme Court effectively encouraged the use of paralegals for the cost-effective delivery of services. It is important to note, however, that Missouri v. Jenkins does not abrogate the attorney's responsibilities under Model Rule 1.5 to set a reasonable fee for legal services, and it follows that those considerations apply to a fee that includes a fee for paralegal services. See also, South Carolina Ethics Advisory Opinion 96-13 (a lawyer may use and bill for the services of an independent paralegal so long as the lawyer supervises the work of the paralegal and, in billing the paralegal's time, the lawyer discloses to the client the basis of the fee and expenses).

It is important to note that a number of court decisions have addressed or otherwise set forth the criteria to be used in evaluating whether paralegal services should be compensated. Some requirements include that the services performed must be legal in nature rather than clerical, the fee statement must specify in detail the qualifications of the person performing the service to demonstrate that the paralegal is qualified by education, training or work to perform the assigned work, and evidence that the work performed by the paralegal would have had to be performed by the attorney at a higher rate. Because considerations and criteria vary from one jurisdiction to another, it is important for the practitioner to determine the criteria required by the jurisdiction in which the practitioner intends to file a fee application seeking compensation for paralegal services.

An Ode To The Paralegal Gladiators a/k/a Litigation Paralegals  

By: Jamie Collins

January 16, 2014 

The Paralegal Society Blog 

One day about a year ago, I received a call from the courthouse. It was the kind of call a busy Litigation Paralegal looks forward to, but doesn't receive all too often. One that occurs when other attorneys in your firm outside of your immediate circle call upon you (the reliable, makeshift ninja standing deskside) from the midst of a jury trial to request a piece of critical information or evidence for purposes of impeachment.

(For you newbies and non-litigation paralegals out there, I am referring to evidence used to prove that a witness lied on the stand, while under oath. He says one thing, and the attorney is able to readily produce a document that says another.)

For all intents and purposes, this telephone call signals the start of what can best be described as "The Paralegal Olympics." The call comes in. The paralegal smiles, remembers to breathe, and verbally indicates to the calling esquire that it shall be done.

It was one of those rare moments where I immediately stop pushing papyrus around that desktop, step away from the keyboard to rise from my seat, walk out into the hallway within an earshot of all staff members, and in an incredibly serious tone (nothing short of a verbal command issued by the likes of Olivia Pope or Juliana Marguiles. Yes, just like that...) begin to spout the following:

"They called from trial. I need everyone to stop what they are doing and scour the internet for ____.  We have no time to waste. Print off whatever you find and show it to me. In about 20 minutes, when I need to leave to deliver it to them, I'll take the best of what we've found."

I then storm back to my desk and onto Google in a paralegal state that is half anxious, half giddy, to begin an incredibly fast and furious search for the best evidence there was to be had. A moment that would get any paralegal's heart racing, adrenaline flowing, and senses elevated 20 times over as she stands before the pearled gates of glory overlooking the litigation promise lands. I realize I have about 20 minutes until I'll need to depart out of those law firms doors to bring the trial team what they need to kill an opposing witness (figuratively speaking, of course) and make the case.

Exhibit Label affixed to the front. Exhibits made - 13 copies, to be precise.

I lift the last set of warm pages off of the copier, grab the next set of numbered tabbies for the binders, grab my handbag, and dash out the door, all the while hoping I don't lose a heel (or my sanity) in the process. Parking money? Check!

It. Is. On.

Upon arriving at the courthouse and sitting through the potentially impeachable witness' testimony, it turns out we didn't end up needing those key documents "Ms. Pope" had found, after all. No lie, no documents to be produced. But that didn't put a damper on the moments that day when I lived the paralegal dream - on the edge, with a big need, a little time, and a will to win. It is these types of moments that we, as savvy litigation paralegals, step up, step in, and live for.

Into the fray we go.

These are the moments that lace the remainder of our less dramatic, non-gladiator-esque, deadline latent, litigation-paper-pushing days filled with e-mails, paper cuts, and embers of craziness with small glimmers of boldness, and greatness, and magic. The type of day that makes us REMEMBER why it is we do what we do in the first place. We sometimes forget. I know I do. It's the reason we are willing to push the paper around the desk for 86 days in a row for a chance - just one - to dance for a day into the dream. And we remember. And we live on the edge. And we are ALIVE.

And happy - so happy we can't imagine doing anything else. And we remember. Fueled on litigation inspiration, we push paper for 86 more days to earn our next ticket into the grand arena. We spin that paper to live another day, and do it all over again...one more time.

This brings me to the second part of today's topic. When speaking at local schools, I am frequently asked how often I, as a litigation paralegal, attend a trial or how often I am actually asked to find a "smoking gun" for a big case. These types of tasks have allure. They are appealing. Sexy stuff. People admire them. After all, who doesn't want to be Erin Brockovich? These types of tasks are instilled in the minds of academic dreamers everywhere. Heck, it's the reason why many folks decided to enroll in a paralegal program in the first place. They want to have a shot at making their way into The Paralegal Olympics. They want to claim a seat on a big case in the courtroom. They seek glory.

The truth is between the two categories of trials and smoking guns, it's probably about one tenth of the time, at best, for most of us. Those days of typing, and filing, and sorting, and organizing, and finding, and seeking, and calling, and ordering records, and reorganizing, and running through the office, and halfway losing one's mind, as you work for someone who is halfway losing his own, are what buy you the seat in the chair. Many litigation paralegals are paid more than what a person probably should be paid to sit in the chair and file, sort, field calls, stuff paper into files, and be at an esquire's beck and call. Overpaid to be manual filing clerks, file openers, phone call takers, and file organizers. Yes, indeed.

But it is on those days the call comes in that the attorneys know you are worth every green dollar bill contained within that weekly paycheck. Those days when you must enter the glory games to put it all on the line. For them - right here, right now. To step up. Step in. Step out. To become the executioner of deeds, saver of sanity, and the one who will arrive at the courthouse with the documents that may or may not be needed with a big, confident smile pasted across your face as you take your seat in the peanut gallery, because in that moment...you are proud, and prepared, and ready.

You are a Litigation Paralegal, with a seat in the courtroom, and a smoking gun tucked securely under your arm. Whether you get the opportunity to rise and hand over that stack of manila folders containing case-making exhibits or not, you are dancing a day through the dream. You are in The Paralegal Olympics. No matter what happens in that courtroom, in that moment, in that case, on that day...you are ALIVE. And you REMEMBER exactly who you are, and why it is you do what you do, all the other days of the year. Every single one of them.

So push that paper, field those calls, put out those fires, scribble down those notes, organize that file, and attempt to save the other half of your sanity, along with his, as you always do. You are a Litigation Paralegal. You are proud. You are prepared. You are ready. REMEMBER the dream.

Take your seat, and live it.

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Reprinted from The Paralegal Society Blog:  

http://theparalegalsociety.wordpress.com/2014/01/16/an-ode-to-the-paralegal-gladiators-aka-litigation-paralegals/